Why Continuing Trusts Matter: Protecting Your Children’s Inheritance from Divorce, Creditors, Predators and Lawsuits

One of the most surprising realities in California estate planning is this, even though inheritances are generally considered separate property under California law, thousands of beneficiaries still lose inherited wealth every year because of preventable legal mistakes.

California is a strict community property state. Inheritances received by a child are typically classified as that child’s separate property and do not automatically belong to a spouse. However, inherited wealth can quickly lose that protected status through commingling, poor planning, or creditor exposure.

For families who have worked hard to build wealth, this raises an important question:

How can you help ensure your child’s inheritance stays protected?

One of the most effective strategies is the use of a properly drafted continuing trust with strong creditor protection provisions.

The Hidden Danger of Commingling Inheritance

Family law and Estate law experts regularly see inherited wealth lost because beneficiaries unintentionally mix inherited assets with marital or jointly owned property.

This is often called “the commingling trap.”

Examples include:

Depositing inherited funds into a joint bank account
Using inheritance funds for the down payment on a family residence
Mixing inherited investments with marital assets
Failing to maintain proper asset tracing records

Once inherited property becomes commingled, it may lose its separate property character. In a divorce, a court could determine that the inherited funds have become community property subject to division.

In some cases, inherited assets may also become vulnerable to:

Creditor claims
Bankruptcy proceedings
Lawsuits
Spousal support obligations
Business liabilities

These risks are often magnified when inheritances are distributed outright to beneficiaries rather than left inside protective trusts.

Why Outright Distributions Can Be Risky

Many parents assume the simplest approach is to leave an inheritance directly to their children. While this may seem straightforward, outright distributions often eliminate many of the protections that could otherwise shield inherited wealth.

Once assets are distributed outright:

The beneficiary legally owns the property “personally”
Creditors may gain access
Divorcing spouses may make claims
Lawsuit plaintiffs may pursue the assets
Bankruptcy trustees may seek recovery

Even beneficiaries with good intentions can unintentionally expose inherited assets to future risks. This is why many estate planning attorneys recommend continuing trusts instead of outright inheritances.

What Is a Continuing Trust?

A continuing trust allows inherited assets to remain inside a protective trust structure for the beneficiary’s lifetime rather than being distributed outright.

The beneficiary may still receive:

Income
Distributions of principal
The ability to control the trust investments
Protection from legal threats

However, the assets themselves remain inside the trust structure, which can provide substantial creditor protection advantages.

The Importance of “No Demand Rights”

One of the key concepts in creditor protection planning is whether the beneficiary has a legal right to demand trust assets. If the beneficiary has unrestricted withdrawal rights, creditors may potentially step into the beneficiary’s shoes and pursue those same rights.

For example:

If Johnny can demand 25% of his trust at age 25, a creditor may potentially access that same 25% through a legal action.
If Johnny has unlimited withdrawal rights at age 30, the entire trust may become exposed.

This is why properly drafted continuing trusts often avoid giving beneficiaries broad demand or withdrawal rights. The less control a beneficiary has to force distributions, the stronger the potential creditor protection.

Interested Trustee vs. Independent Trustee

Another major factor in trust protection planning is trustee selection.

There are generally two categories of trustees, Interested and Independent.

Interested Trustees

An interested trustee is typically:

A parent
A sibling
A child
A first degree relative or subordinate party working for the trust Grantor
The beneficiary themself

Interested trustees are often limited by what is known as the HEMS standard of Health, Education, Maintenance and Support for distributions from the trust. While this may provide some protection, there can still be vulnerabilities. For example, a divorcing spouse may argue that trust distributions required under the HEMS standard should be available for alimony and child support.

Why Independent Trustees Can Provide Stronger Protection

An independent trustee generally has much broader discretion over trust distributions if discretionary distribution powers are a part of the continuing trust.

An independent trustee may:

Refuse distributions during litigation
Delay distributions during creditor disputes
Negotiate claims from a stronger position
Protect trust assets during lawsuits or divorce proceedings

Examples of stronger independent trustees may include:

Banks
Trust companies
Independent professionals such as private fiduciaries
Certain attorneys or CPAs
Those not directly related to the trust Grantor or beneficiary

The broader the trustee’s discretion, the stronger the potential creditor protection.

Flexible Planning Options

One of the advantages of modern continuing trust planning is flexibility. A beneficiary may initially serve as trustee of his or her own trust while no creditor concerns exist. However, if a future potential risk arises:

An independent trustee could be appointed
A Trust Protector (if drafted in advance into the trust) may remove and replace trustees for better protections
The beneficiary may resign in favor of a discretionary independent trustee

Continuing Trusts vs. Postnuptial Planning

Some people assume they can protect inherited wealth later through:

Prenuptial agreements
Postnuptial agreements
Asset protection transfers after an inheritance is received

Unfortunately, those strategies may not always work as intended. While prenuptial agreements can be effective when properly drafted before marriage, postnuptial agreements often face greater scrutiny and may be difficult to enforce if not carefully prepared with both spouses having independent legal counsel. In contrast, a properly drafted third-party continuing trust established by parents can often provide significantly stronger protection from the beginning.

Third-Party Trusts vs. Self-Settled Trusts

A continuing trust created by parents for a child is considered a third-party trust. Third-party trusts generally receive much stronger creditor protection than self-settled trusts created by beneficiaries for themselves later in life (in jurisdictions that allow for self-settled trusts).

If a beneficiary receives an inheritance outright and later attempts to move the assets into a self-settled asset protection trust, California courts may scrutinize the transfer, especially if creditor issues already exist. By contrast, assets that remain continuously protected inside a properly structured continuing trust may retain a much higher level of protection.

No parent can predict whether a child may someday face:

Divorce
Lawsuits
Bankruptcy
Business failures
Creditor claims

However, thoughtful estate planning can help prepare for those possibilities. A properly drafted continuing trust may help preserve inherited wealth for your children and future generations while providing substantial protection from creditors, divorcing spouses, and other future legal threats.

If you, a friend, or a loved one would like to discuss estate planning or creditor protection strategies for your children, contact our Intake Department at 760-448-2220 or visit us online at www.geigerlawoffice.com/contact.cfm. We proudly serve families throughout California from our offices in Carlsbad and Laguna Niguel.